Citation Nr: 1012940
Decision Date: 04/06/10 Archive Date: 04/14/10
DOCKET NO. 08-28 504 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUE
Entitlement to service connection for a chronic stress
fracture of the left tibia.
REPRESENTATION
Appellant represented by: Marine Corps League
ATTORNEY FOR THE BOARD
T. Hal Smith, Counsel
INTRODUCTION
The Veteran served on active duty from July 1980 to July
1986.
This matter is before the Board of Veterans' Appeals (Board)
on appeal of an April 2007 rating decision of the Department
of Veteran's Affairs (VA) Regional Office (RO) of Togas,
Maine for the Detroit, Michigan, RO, which maintains final
jurisdiction of the file.
FINDING OF FACT
The Veteran's stress fracture of the left tibia was first
diagnosed many years after service and has not been linked
by competent medical evidence to service.
CONCLUSION OF LAW
The Veteran's left tibia stress fracture was not incurred in
or aggravated by service. 38 U.S.C.A. §§ 1131, 5102, 5103,
5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102,
3.303 (2009).
REASONS AND BASES FOR FINDING AND CONCLUSION
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), codified
in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at
38 C.F.R. § 3.159, amended VA's duties to notify and assist
a claimant in developing the information and evidence
necessary to substantiate a claim.
First, VA has a duty under the VCAA to notify a Claimant and
any designated representative of the information and
evidence needed to substantiate a claim. In this regard, an
October 2006 letter to the Veteran from the RO specifically
notified him of the substance of the VCAA, including the
type of evidence necessary to establish entitlement to
service connection on a direct and presumptive basis, and of
the division of responsibility between the Veteran and the
VA for obtaining that evidence. Consistent with 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied
the notification requirements of the VCAA by way of these
letters by: (1) informing the Veteran about the information
and evidence not of record that was necessary to
substantiate his claims; (2) informing the Veteran about the
information and evidence VA would seek to provide; (3)
informing the Veteran about the information and evidence he
was expected to provide; and (4) requesting the Veteran to
provide any information or evidence in his possession that
pertained to the claim.
Second, VA has made reasonable efforts to assist the Veteran
in obtaining evidence necessary to substantiate his claim.
38 U.S.C.A. § 5103A (West 2002 & Supp. 2009). The
information and evidence associated with the claims file
consist of his service treatment records (STRs), VA medical
treatment records, private post-service medical treatment
records, and statements from the Veteran and his
representative. There is no indication that there is any
additional relevant evidence to be obtained by either VA or
the Veteran. It is noted that the records include entries
from the ships upon which the appellant served. There is no
indication that there are additional records that could be
obtained.
The United States Court of Appeals for Veterans Claims
(Court) held that the notice requirements of 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) apply to all five
elements of a service connection claim, to specifically
include that a disability rating and an effective date will
be assigned if service connection is awarded. Dingess v.
Nicholson, 19 Vet. App. 473 (2006). In the present appeal,
the Veteran was provided with notice of this information in
the October 2006 letter mentioned above.
Service Connection
Service connection may be established for a disability
resulting from personal injury suffered or disease
contracted in the line of duty or for aggravation of
preexisting injury suffered or disease contracted in the
line of duty. 38 U.S.C.A. § 1131 (West 2002 & Supp. 2009);
38 C.F.R. § 3.303 (2009).
Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d) (2009).
Where there is a chronic disease shown as such in service or
within the presumptive period under § 3.307 so as to permit
a finding of service connection, subsequent manifestations
of the same chronic disease at any later date, however,
remote, are service connected, unless clearly attributable
to intercurrent causes. 38 C.F.R. § 3.303(b) (2009).
This rule does not mean that any manifestations in service
will permit service connection. To show chronic disease in
service there is required a combination of manifestations
sufficient to identify the disease entity, and sufficient
observation to establish chronicity at the time as
distinguished from merely isolated findings or a diagnosis
including the word "chronic". When the disease entity is
established, there is no requirement of evidentiary showing
of continuity. When the fact of chronicity in service is
not adequately supported, then a showing of continuity after
discharge is required to support the claim. 38 C.F.R.
§ 3.303(b) (2009).
The Court has held that, in order to prevail on the issue of
service connection, there must be medical evidence of a (1)
current disability; (2) medical, or in certain
circumstances, lay evidence of inservice incurrence or
aggravation of a disease or injury; and (3) medical evidence
of a nexus between the claimed inservice disease or injury
and the present disease or injury. Hickson v. West, 12 Vet.
App. 247, 253 (1999); see also Pond v West, 12 Vet. App.
341, 346 (1999).
The Board must assess the credibility and weight of all the
evidence, including the medical evidence, to determine its
probative value, accounting for evidence which it finds to
be persuasive or unpersuasive, and providing reasons for
rejecting any evidence favorable to the claimant. See
Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v.
Derwinski, 2 Vet. App. 614, 618 (1992); Gilbert v.
Derwinski, 1 Vet. App. 49 (1990). Equal weight is not
accorded to each piece of evidence contained in the record;
every item of evidence does not have the same probative
value.
Analysis
The Veteran claims that he has a chronic stress fracture of
the left tibia of service origin. His STRs, however, make
no reference to any such injury or any problems associated
with his left tibia. What they do show is that he was seen
in September 1985 for shin splints of the right leg. The
appellant was instructed to stop his running and increase
his swimming. At time of separation examination in June
1986, he reported cramps in the legs, but no disorder of
either lower extremity was noted, to include a chronic
stress fracture of the left tibia. Evaluation of the lower
extremities was described as normal. Thus, the STRs provide
compelling evidence against the claim. Struck v. Brown, 9
Vet. App. 145 (1996).
In fact, the evidence shows that the Veteran was first
diagnosed with a stress fracture of the left tibia in
January 2002 after being X-rayed at a private facility. At
that time, it was noted that he was a runner with medial
tibial pain. This lengthy gap between service and the first
documented evidence of a left tibia stress fracture provides
highly probative evidence against his claim. Maxson v.
Gober, 230 F.3d 1330, 1333 (Fed. Cir. 200) (ruling that a
prolonged period without medical complaint can be
considered, along with other factors, as evidence of whether
an injury or a disease was incurred in service which
resulted in any chronic or persistent disability).
The Board also emphasizes that none of the medical records
in the claims file includes a medical opinion concerning the
etiology or date of onset of the Veteran's stress fracture
of the left tibia. In other words, these records do not
include a medical opinion relating the Veteran's left tibia
stress fracture to service, thereby providing further
evidence against the claim. Maggitt v. West, 202 F.3d 1370,
1375 (Fed. Cir. 2000). Instead, the record reflects that
the Veteran was not seen during service for complaints
associated with the left leg, and that the first medical
evidence of a left tibia fracture was in 2002. It was also
noted at the time that he was a runner - exercise which may
or may not have precipitated his left tibia stress fracture.
In any event, however, both the service and post-service
treatment records provide compelling evidence against his
claim that the stress fracture is related to service from so
many years before.
It is noted that the Veteran has reported that the report of
the right leg shin splints was actually for both legs.
There is nothing in the service treatment records to support
that statement. Moreover, it is noted that while the
periosteal change noted in January 2002 is thought possibly
to be "fairly chronic" this does not establish it has been
present since separation from service. It would seem that
had the appellant been bothered with these complaints since
service he would have sought treatment at an earlier time.
No such treatment is reported or demonstrated.
In addition to the medical evidence, the Board has also
considered the Veteran's own lay statements in support of
his claim. While he may well believe that his left tibia
stress fracture is related to service, as a layperson
without any medical training and expertise, he is simply not
qualified to render a medical opinion in this regard.
Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v.
Derwinski, 2 Vet. App. 492 494-95 (1991) (laypersons are not
competent to render medical opinions). The veteran is
competent to comment on his symptoms, but not the cause.
Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007);
see also 38 C.F.R. § 3.159(a)(2) and Layno v. Brown, 6 Vet.
App. 465, 469 (1994) (distinguishing between competency ("a
legal concept determining whether testimony may be heard and
considered") and credibility ("a factual determination going
to the probative value of the evidence to be made after the
evidence has been admitted")).
For these reasons and bases, the Board finds that the
preponderance of the evidence is against the claim for
service connection for a left tibia disorder. As such,
there is no reasonable doubt to resolve in the veteran's
favor, and his claim must be denied. 38 C.F.R. § 3.102
(West 2002 & Supp. 2009); Alemany v. Brown, 9 Vet. App. 518,
519 (1996).
ORDER
Service connection for a chronic stress fracture of the left
tibia is denied.
____________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs